Lloyds TSB Platinum Card - Court Claim

[iOiO]

Thanks for the advice cwmru, have been trying my best to resist pressing the triangle, think I'll give it a few more hours, but I am really starting to sweat now!

 

To clarify my position to everyone, I am looking for a suitable particularised defence which relates to lack of an enforceable CCA and/or DN that I can adapt to suit my case. I have spent days reading through hundreds of threads here and almost without exception all I can find is embarrassed/holding defences, I have already submitted an embarrassed defence (as in post#18 kindly supplied by creditcardmug) but I now need to upgrade this to a particularised defence.

 

Surely someone must have been in a similar position to me by now... if they have then I cant for the life of me find them!!

 

Please help if you can, even if its only to point me in the right direction.

Edited August 5, 2009 by iOiO

[cymruambyth]

Hi I'm not sure what information you have gathered. This is a defence that ccm wrote in June, I don't know if it can be of any use.

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxxxxxx - Claimant

and

xxxxxxxxxxxxxxxx- Defendant

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

a) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

b) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

c) Item 2 in the claimants particulars of claim cites clauses in the alleged agreement

it is averred that such a document itself containing such clauses and complying with the Consumer Credit Act 1974 s60 (1) does not exist the defendant therefore denies that any sum or interest thereon is due to the claimant. And puts the claimant to strict proof of these claims

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . xxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms.

 

 

10.The Application form supplied is illegible and I am unable to clearly assess its contents. This contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

 

 

 

 

 

 

The Request for Disclosure

 

11. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

12. The claimant has replied without complying with my request (letter attached marked Exhibit B)

 

13. The courts attention is drawn to the fact that without the disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

14. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13. it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

16. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

17. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

18. The claimant is therefore put to strict proof that such a compliant document exists

 

 

19. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

20. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

21. Notwithstanding point 20, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

22. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

23. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

24. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

25. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

26. Alternatively, should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the court’s permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

[iOiO]

Thanks for your help Cwmru but its an embarrassed defence (see paragraph 3) as are almost all of the pro-forma defences I can find here, and I have already submitted something very similar. I need a more detailed particularised one.

 

If you or anyone else can find a good particularised one I will be eternally grateful

[cymruambyth]

Hi although it states that it is an embarrassed defence, i thought that by taking out that point and playing with the rest it could possibly be used.

[iOiO]

Yes i have considered editing it to suit, but there is a lot at stake here, and I really dont want to get it wrong, or miss anything vital at this stage.

[cymruambyth]

I quite understand; I'm a few weeks behind you

[iOiO]

Lets hope my "journey" is educational and inspiring to you then

[underdog13]

bumping for you, ioio:)

 

Sorry I don't have the knowledge to help personally.

[Tonka99]

Hello OIOI

 

When do you have to get this in by , if you are behind

time press the red triangle for site team help .

I have just won round one with **** with Andyorch

and Brw,s help.

You need to make sure you are happy with what you

send as when in court you will rely on it .

Best of luck

 

Tonks:)

[iOiO]

Cheers guys for the bumps, unfortunately they do not seem to be having the desired effect

 

Much as I hate to bother anyone its time to push the red triangle I think, as I'm due in court on Monday

[lilly white]

HAVE A READ HOPE THIS HELPS

 

 

Skeleton Argument

 

 

1 This statement is made in opposition to the Claimant’s application to Set A Side District Judge (XXXXXInsert name) orders dated xxxxxx and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

 

5 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

6 At trial I will contend that the screenshot,if any,is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

7 The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

Shirei you will have to clarify the following and remove if not applicable

8 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a Letter Before Action on the xxxxxxxx demanding payment, being just XX days after the claimant claims the default notice was sent.

 

9 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

10 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

11 Without Prejudice to my main contention set out above it is understood that the amount claimed by the Claimant contains missold PPI to the value of £4228.68 which we /I intend to instigate a Counter Claim in response.The alleged CCA/Application Form produced by the Claimant shows quite clearly that the option was preticked and therefore signifying that this was compulsorynot optional.

 

12 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of the CMC, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

13 The claimant also claims £667.00 in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

14 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for Set a side on my Directions, against me, should be dismissed.

 

Date: xx August 2009

 

 

Statement of Truth

 

I believe the facts stated in this Statement are true.

[iOiO]

Thanks Lilly that may well come in handy for me later on (they haven't applied for a summary judgement as yet).

 

What I need at this stage is a particularised defence or at least the bones of one.

 

Can anyone help?

[lilly white]

ok i see you have been given various defences ets what are apart from the normal agreedment default what are you looking at

[iOiO]

Hi again Lilly

 

I have already filed this embarassed defence at court....

 

Defence

 

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

 

5. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

xxxxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms.

 

10 The document supplied did not comply with the requirements of the CCA 1974

 

11. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

15. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

16. The claimant is therefore put to strict proof that such a compliant document exists

 

 

17. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

18. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

22. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

23. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

24. Alternatively, Should the court order the claimant to produce the nessecary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

However, SCM are now seeking an order to make me file a fully pleaded defence as (in their opinion) my current defence discloses no reasonable grounds for defending this claim (you've got to laugh!!!!)

 

So I am seeking help in compiling a fully pleaded (which I presume is the same as a 'particularised') defence.

Edited August 6, 2009 by iOiO
typo

[citizenB]

Hi Guys

 

New twist in the case, SCM have applied to the court to make an order for me to file a fully pleaded defence as my current defence discloses no reasonable grounds for defending this claim.

 

I would like to now submit my fully pleaded defence but would very much appreciate some help with this.

 

They have admitted that they have no CCA on file with respect of this card (it was a visa card and they changed it on their own volition to a mastercard) they have provided a CCA but it was for the original Visa card and even then it fails on a number of counts

1) It is not signed for LTSB

2) It is not fully legible in a number of areas

3) There are no prescribed terms on the signed page

4) It bears an account number totally different to the account number in which they have made their claim

5) The photocopy of the microfiche of the Terms and Conditions they have supplied me with (which supposedly were part of the agreement (which in fact was an application form) I signed, state "These conditions are correct as at 1 July 200x" whereas I applied for the card a week or so before this date!

 

They have also informed me that they do not have a copy of the Default Notice nor the Formal Demand as copies of these documents were not retained by the Bank, but their issue was "clearly noted on the Banks records" and then go on to quote some guff about the fact that "they were sent out on XYZ date by first class post and that it is averred that, notwithstanding that postage alone constitutes service, by reason of Section 7 of the Interpretation Act 1978, in the absence of proof to the contrary, such notices are in any event deemed to have been delivered. There is no record of these documents being returned unserved by the Post Office"

 

Anyone help?

 

Cheers!!

 

Ok, I have read back through your thread cos I am a little confused. You say **** are seeking an order for you to submit a fully particularised defence.

 

You are in court on Monday, next. You normally need to submit this type of thing at least 7 days before hand.

 

Have you actually received from the court an order obliging you to put in a fully particularised defence or have you just received a letter from **** saying this is what they intend to do.

 

TBH, if you stil havent received the documents you require in order to prepare a full defence. then you are still disadvantaged ??

 

The site team are aware of your plight, I will mark it urgent. However, if you could answer the questions above, it will help others advise you correctly.

[iOiO]

OK... SCM have made an application to the court (an N244) that an order be made for me to file a fully pleaded defence, the hearing of this is on Monday.

 

I realise that I will then probably be given a certain amount of time to then produce such a defence should they be successful in their application, but I wanted to pre-empt this and hopefully be able to produce my defence there and then.

 

In terms of producing such a defence as explained earlier I originally had a visa card with account number ABC for which they have a CCA (which is in fact just an Application form for a card) however this is not compliant in lots of areas for the following reasons

 

1) It is not signed for LTSB

2) It is not fully legible in a number of areas

3) There are no prescribed terms on the signed page

4) It bears an account number totally different to the account number in which they have made their claim

5) The photocopy of the microfiche of the Terms and Conditions they have supplied me with (which supposedly were part of the agreement (which in fact was an application form) I signed, state "These conditions are correct as at 1 July 200x" whereas I applied for the card a week or so before this date!

6) It is taken from a microfiche record which if presented at court in lieu of the original document, I understand is inadmissible as it is regarded as heresay evidence and is in any case open to manipulation by whatever means.

 

They changed it from visa to mastercard with account number XYZ but they have no CCA for this mastercard account (I have a letter from them when I did a SAR and later specifically requested the CCA relating to accounts ABC and XYZ in which they started no data could be found for account XYZ).

 

The claim was made under account XYZ for which they have no CCA, if any default notices or formal demands exist I would imagine that they too would be regarding account XYZ.

 

In fact they have already informed me that they do not have a copy of either the Default Notice or the Formal Demand as copies of these documents were not retained by the Bank, but their issue was "clearly noted on the Banks records" and then go on to quote some guff about the fact that "they were sent out on XYZ date by first class post and that it is averred that, notwithstanding that postage alone constitutes service, by reason of Section 7 of the Interpretation Act 1978, in the absence of proof to the contrary, such notices are in any event deemed to have been delivered. There is no record of these documents being returned unserved by the Post Office"

 

I have in fact got the banks records in my possession (through a full DSAR) and I am currently ploughing through them (there must be at least a thousand pages) but as yet cannot find any reference to such letters being sent out.

Edited August 6, 2009 by iOiO

[iOiO]

So yes I am disadvantaged in preparing my defence, but in the absence of Agreement XYZ I am supposing I have to make the best (or should I say most) of a bad job (by Lloyds TSB)

Edited August 6, 2009 by iOiO

[iOiO]

A small point I know, but I also note on studying the forums that the supplied CCA for account ABC also fails in this respect

 

For a credit card agreement to be enforceable it should have "Credit Card Agreement Regulated By The Consumer Credit Act 1974" - as specified in the Consumer Credit (Agreements) Regulations 1983, Schedule 1

 

SCHEDULE 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN

MODIFYING AGREEMENTS

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the Consumer Credit Act 1974".

 

Whereas in the CCA agreement (actually an application form) supplied, in the section where the signature box is located, it is headed "Credit Agreement Regulated By The Consumer Credit Act 1974"

 

It is therefor missing the vital word "Card"

 

Every little helps

Edited August 7, 2009 by iOiO

[iOiO]

But perhaps more importantly I also note that there is no mention of a very vital Prescribed Term anywhere in the purported CCA supplied, after all it is just an application

 

A term stating the amount of credit

[iOiO]

... and yet another flaw...

 

In one section of the Particulars of Claim it states

 

2. Clause 7 of the agreement provided that the Claimants would furnish the Defendant with a monthly statement showing the balance currently due, the minimum payment to be made & the date for payment. If the balance was not paid, then provided the Defendant made the minimum payment on or before such date, the remainder of the balance should remain outstanding & the Defendant should pay interest upon it per month in accordance with clauses 5, 6 & 9 of the agreement.

 

But I note in the T&C's supplied with the CCA, although it is VERY difficult (if not impossible in areas) to read, the highest numbered clause is 4

 

 

Can anyone help me with this (please read a few posts forward first, (from post #64 at least))?

Edited August 7, 2009 by iOiO
Clarity

[lilly white]

14. The copy sent in response to my section 78(1) request is extremely poor quality and it is illegible and not in compliance with the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2(1) states

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

Therefore the document sent in reply to the request made on xx/xx/2007 fails in its entirety to comply with the requirements of section 78(1) and the regulations as stated

 

15. In addition to the document not being complaint with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). The purported credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

16. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

17. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

18. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

 

[lilly white]

then we ask for this

 

 

74. I therefore respectfully request that the Court order the Claimant produce the Original signed Agreement before the Court to show the form and content of it and that it complies with the Regulations referred to in this Defence, otherwise the Court’s powers of enforcement are surely limited in these circumstances.

 

75. Furthermore, the Defendant requires clarification on the status of the original Agreement, if such ever existed. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document. I will also require written clarification that any copy document produced is authentic. Suitable Document checking, copying and destruction Policy notes must also be provided, backed up by Audit Logs to confirm how such Policies were carried out, checked and maintained. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32.

 

76. I also refer to the following quotation obtained from the Website of Francis Bennion, who was the draftsman of the Consumer Credit Act 1974:

 

Consumer Credit Act 1974 s 127(3):

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the Credit Agreement it deserved to find it unenforceable, and that the Court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed

[iOiO]

Bumping

[lilly white]

MAY I ASKED IS ANY LINK BETWEEN THE SIGN PAGE AND THE TERMS PAGE IF NOT READ THIS

 

Here is the transcript of the recent Bank of Scotland v Mitchell case in the Leeds County Court.

I have just copied and pasted as I don't know how to attach a copy here,hope its ok

 

IN THE LEEDS

COUNTY COURT Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an

action.

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003,

issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said

to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was

obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was

successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be,

"A determination of the issue set out above". Various procedural directions then follow.

3. What has been listed for trial today is, "The determination of issue", referred to in the order

which I have just recited.

4. The agreement made in relation to the defendant's credit card was a regulated agreement

within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

Having regard to the date of the agreement made in this case, which was prior to amendments

made to the Act which took effect from 5th April 2007, the result of non compliance with

Section 61(1)(a) would be that the credit card agreement would be unenforceable against the

defendant, see Consumer Credit Act 1974 Section 127(3).

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was

withdrawing its claim against the defendant. This announcement has been accepted by Mr

Berkley QC, who appears for the defendant, as equivalent to the service of a notice of

discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part

38.6.1:

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs

as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should

operate, and further that the order for costs to be made in favour of his client should be an

order for assessment on the indemnity basis.

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and

on which the evidence has been focussed, is whether the bank supplied the defendant at the

time of signing the application form for credit with documents which contained all the terms

of the agreement between them. I shall elaborate a little further on this. It has been the

defendant's case that he was supplied with nothing more than the application form which he

signed. It has been the bank's case that in accordance with the usual practice of the bank the

defendant would have been, and must have been, supplied with other documents, including a

pack which will have contained all the terms and conditions of the agreement made between

the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a

new and radically different point, namely that the document signed by the defendant did not

contain all the prescribed terms of the agreement. I must again elaborate on this. It is

common ground that the only document signed by the defendant was the application form. It

is also common ground that the application form did not, on its face, set out the prescribed

terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will,

I think, be more economical if I simply quote those two paragraphs in full rather than attempt,

in my own words, to expand on them:

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

7. In my judgment, the point with which I have just been dealing is not properly to be

characterised as a new point on which the bank can present itself as being taken by surprise. I

refer to four documents. First, on 3rd November 2008, when the defendant was acting as a

litigant in person, in the request to have the default judgment set aside he said this:

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent

to the solicitors acting for the bank a copy of what they called an expert report setting out the

reasons why the agreement was in breach of Section 61(1)(a), and they went on:

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by

another firm of solicitors, and the opinion contains the following:

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by

the solicitors acting for the bank in their reply of 19th March 2009:

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement

made for the purpose of the trial of the issue, at the very beginning of the statement, in

paragraph 3, he said this:

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

8. The absence of further reference to the point in the evidence is hardly surprising, since the

point is one of law, on which there was no controversy as to the facts.

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be

criticised for the omission. She is bound to act in accordance with her instructions, and those

instructions were presumably to say no more than she has in fact said. But this does not

prevent me from drawing what is in my judgment the only inference which can possibly be

drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be

hundreds of similar cases and the bank would plainly not wish other defaulting customers to

get wind of an adverse decision on the fundamental point which is embodied in the quotation

from Mr Berkley's written argument, which I have already set out.

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the

presumption as to incidence of costs which is ordinarily applicable in a case of

discontinuance. The bank will pay the defendant's costs of the claim, subject only to any

existing order for costs in favour of the bank not being disturbed.

11. Finally, I have to consider whether the costs of the defendant should be assessed on the

standard or on the indemnity basis. In my judgment the assessment should be on the

indemnity basis. The only realistic view of what has happened is that the bank has

surrendered on a straightforward point of law, to which it has on several occasions been

alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with

litigation in the face of warning signs of the kind which were erected here, adopts a high risk

strategy. The point in question was a simple one. There was no relevant controversy as to the

evidence. To choose to abandon the claim on the very day of the hearing is doing a serious

disservice to the efficient administration of justice, and comes very close to constituting an

abuse of process. At the very least, the bank's conduct of the litigation falls comfortably

within the range of cases in which, on the modern authorities, an assessment of costs on the

indemnity basis is appropriate.

__________

County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook.

This comprehensive and very accessible guide will take you through the process of suing or defending a claim.

This guide will help you take control of your litigation and make you more confident about doing it yourself.

Applies to England and Wales

 

[citizenB]

OK... SCM have made an application to the court (an N244) that an order be made for me to file a fully pleaded defence, the hearing of this is on Monday.

 

I realise that I will then probably be given a certain amount of time to then produce such a defence should they be successful in their application, but I wanted to pre-empt this and hopefully be able to produce my defence there and then.

 

In terms of producing such a defence as explained earlier I originally had a visa card with account number ABC for which they have a CCA (which is in fact just an Application form for a card) however this is not compliant in lots of areas for the following reasons

 

1) It is not signed for LTSB

2) It is not fully legible in a number of areas

3) There are no prescribed terms on the signed page

4) It bears an account number totally different to the account number in which they have made their claim

5) The photocopy of the microfiche of the Terms and Conditions they have supplied me with (which supposedly were part of the agreement (which in fact was an application form) I signed, state "These conditions are correct as at 1 July 200x" whereas I applied for the card a week or so before this date!

6) It is taken from a microfiche record which if presented at court in lieu of the original document, I understand is inadmissible as it is regarded as heresay evidence and is in any case open to manipulation by whatever means.

 

They changed it from visa to mastercard with account number XYZ but they have no CCA for this mastercard account (I have a letter from them when I did a SAR and later specifically requested the CCA relating to accounts ABC and XYZ in which they started no data could be found for account XYZ).

 

The claim was made under account XYZ for which they have no CCA, if any default notices or formal demands exist I would imagine that they too would be regarding account XYZ.

 

In fact they have already informed me that they do not have a copy of either the Default Notice or the Formal Demand as copies of these documents were not retained by the Bank, but their issue was "clearly noted on the Banks records" and then go on to quote some guff about the fact that "they were sent out on XYZ date by first class post and that it is averred that, notwithstanding that postage alone constitutes service, by reason of Section 7 of the Interpretation Act 1978, in the absence of proof to the contrary, such notices are in any event deemed to have been delivered. There is no record of these documents being returned unserved by the Post Office"

 

I have in fact got the banks records in my possession (through a full DSAR) and I am currently ploughing through them (there must be at least a thousand pages) but as yet cannot find any reference to such letters being sent out.

 

Ok, in the following link you will find surfaceagentx20 has prepared an amended defence and a letter for a circumstance that is similar to yours and strangely enough... it is for an LTSB account.

 

I have linked you directly to the single post , but if you click on the title in the right hand corner of the post you will be able to read the whole thread.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1695055.html

 

HTH